Part 3 - Anonymity

Question 1

What does the Editors’ Code of Practice state about identification of children concerned in pre-trial investigations?

Answer 1

Clause 9 of the Editors’ Code states:

ii) Particular regard should be paid to the potentially vulnerable position of children under the age of 18 who witness, or are victims of, crime. This should not restrict the right to report legal proceedings.
iii) Editors should generally avoid naming children under the age of 18 after arrest for a criminal offence but before they appear in a youth court unless they can show that the individual’s name is already in the public domain, or that the individual (or, if they are under 16, a custodial parent or similarly responsible adult) has given their consent. This does not restrict the right to name juveniles who appear in a crown court, or whose anonymity is lifted.

Question 2

What does the Ofcom Broadcasting Code state about identification of children concerned in pre-trial investigations?

Answer 2

Rule 1.9 states:

When covering any pre-trial investigation into an alleged criminal offence in the UK, broadcasters should pay particular regard to the potentially vulnerable position of any person who is not yet adult who is involved as a witness or victim, before broadcasting their name, address, identity of school or other educational establishment, place of work, or any still or moving picture of them. Particular justification is also required for the broadcast of such material relating to the identity of any person who is not yet adult who is involved in the defence as a defendant or potential defendant.

Question 3

What is the age of criminal responsibility and what does this mean as regards prosecution?

Answer 3

10 - children under this age cannot be prosecuted as they are considered too young to distinguish between right and wrong, though they may be placed under the supervision of social workers.

Question 4

What does the term ‘juvenile’ mean?

Answer 4

Broadly describes anyone under the age of 18.

Question 5

In most cases, what court deals with juveniles charged with a crime?

Answer 5

Youth court.

Question 6

Who is excluded from youth courts?

Answer 6

The public.

Question 7

When might a juvenile be tried at an adult court?

Answer 7

If the offence is serious or if an adult is co-accused.

Question 8

How does Parliament decide to shield all juveniles ‘concerned in the proceedings’ in youth courts from publicity and what does this mean? Name the relevant statute.

Answer 8

Refers to juvenile defendants, victims/alleged victims, witnesses in youth court cases. They are shielded from publicity by banning the media from identifying them in any publication referring to their cases while they are under the age of 18, under Section 49 of the Children and Young Persons Act 1933.

Question 9

What is the scope of s49 of CYPA 1933?

Answer 9

No detail which is likely to identify the juvenile as being concerned in the proceedings should be published. In particular:

• his/her name
• his/her address
• the identity of any school or other educational establishment which s/he attends
• the identity of any place of work
• any still or moving picture of him/her

Question 10

Where else do s49 restrictions apply?

Answer 10

In media reports of appeals heard in higher courts from youth court decisions.

Question 11

When may a court decide to lift s49 anonymity?

Answer 11

• to avoid injustice
• to help trace a juvenile unlawfully at large
• in the public interest

Question 12

In any event, when does s49 anonymity automatically expire?

Answer 12

When the juvenile reaches the age of 18.

Question 13

How may an adult court protect the identity of a juvenile ‘concerned in the proceedings’? Explain the definition of ‘concerned in the proceedings.’

Answer 13

An adult court can make a discretionary order under Section 45 of the Youth Justice and Criminal Evidence Act 1999 that no publication should identify the specified juvenile ‘concerned in the proceedings’ - that is, defendant, witness, or victim - and that this definition is also extended to include a juvenile ‘in respect of whom proceedings are taken.’

Question 14

What is the scope of s45 of YJCEA 1999?

Answer 14

A s45 order should specify the individual it covers and says that no detail likely to identify the juvenile as being concerned in the proceedings should be published, in particular:

• his/her name
• his/her address
• the identity of any school or other educational establishment which s/he attends
• the identity of any place of work
• any still or moving picture of him/her

Question 15

When does a s45 order cease to apply?

Answer 15

It automatically expires when the juvenile reaches the age of 18.

Question 16

How can a criminal court ban any publications, during a juvenile’s lifetime, from identifying that juvenile as being concerned in the court’s proceedings if the juvenile is a witness or alleged witness?

Answer 16

By making a discretionary order under Section 45A of the Youth Justice and Criminal Evidence Act 1999.

Question 17

What are the requirements for a s45A order?

Answer 17

It can only be given to a witness or a victim, NOT a defendant, provided that the juvenile is considered to be in fear or distress about being identified as being concerned in the proceedings and s/he was aged under 18 when the proceedings commenced.

Question 18

What is the scope for s45A orders?

Answer 18

The same as a s45 order. It should specify the individual it covers and says that no detail likely to identify the juvenile as being concerned in the proceedings should be published, in particular:

• his/her name
• his/her address
• the identity of any school or other educational establishment which s/he attends
• the identity of any place of work
• any still or moving picture of him/her

Question 19

In civil proceedings, how can a court ban any publication from identifying a juvenile ‘concerned in the proceedings’ and what does this refer to?

Answer 19

A civil court can make a discretionary order under Section 39 of the Children and Young Persons Act 1933. ‘Concerned in the proceedings’ refers to a juvenile who is a claimant, defendant, or witness.

Question 20

How can a coroner’s court provide anonymity for a juvenile witness concerned in inquest proceedings?

Answer 20

It can make a discretionary order under Section 39 of the Children and Young Persons Act 1933.

Question 21

What is the scope of a secion 39 order?

Answer 21

No publication referring to the case shall reveal any particulars ‘calculated’ to lead to his/her identification as being concerned in the proceedings, particularly:

• the juvenile’s name
• his/her address
• his/her school
• a picture of or including the juvenile

Question 22

When does s39 cease to apply and how is this confirmed?

Answer 22

It ceases to apply when the juvenile turns 18, and this has been confirmed by the Court of Appeal.

Question 23

Which Act automatically bans any publication from identifying a person as being a victim/alleged victim of a sexual offence?

Answer 23

Section 1 of the Sexual Offences (Amendment) Act 1992.

Question 24

What is the scope of Section 1 of the Sexual Offences (Amendment) Act 1992?

Answer 24

No detail which identifies someone as being a victim/alleged victim of a sexual offence should be published during his or her lifetime, particularly:

• his/her name
• his/her address
• the identity of any school or other educational establishment he/she attends
• the identity of any place of work
• any still or moving picture of him/her

Question 25

Which sexual offences does lifetime anonymity usually apply to?

Answer 25

• rape
• assault by penetration
• any other type of sexual activity with a child
• sexual assault
• trafficking a person for sexual exploitation, including for prostitution
• controlling a prostitute for gain
• exposure
• meeting or intending to meet a child following sexual grooming
• voyeurism
• ‘upskirting’

Question 26

When does lifetime anonymity also apply in sexual offence, FGM, trafficking or forced marriage cases? Explain.

Answer 26

Even if the ‘target’ offence was not committed. Anonymity applies in respect of alleged or actual attempts to commit sexual, FGM, trafficking or forced marriage offences, and in respect of allegations of or actual conspiracy, incitement, encouraging, assisting, aiding, abetting or procuring in respect of such offences, and therefore applies to a report of or feature referring to any alleged or actual sexual, FGM or forced marriage offence, including a report of or feature referring to a criminal court case or a civil court case in which such an offence is alleged or admitted to have been perpetrated.

Question 27

How old must a person be to consent to waive their anonymity in respect of sexual, FGM, trafficking or forced marriage offences and what are the conditions that must be met to make this consent valid?

Answer 27

A person must be 16 or over and parents of victims/alleged victims under 16 cannot consent on their behalf. The conditions are:

• the consent must be in writing
• the person waiving his/her anonymity must be aged 16 or over
• the consent will not be valid if it is proved that anyone ‘interfered unreasonably with the peace and comfort’ of that person with the intention of obtaining it.

Question 28

What is best practice as regards how written consent to waive anonymity is worded in regard to sexual, FGM, trafficking or forced marriage offences?

Answer 28

Ask the individual to state explicitly in the written waiver that he/she has not been subjected to any interference with his/her peace or comfort.

Question 29

When may a court lift lifetime anonymity for victims of sexual, FGM, trafficking or forced marriage offences?

Answer 29

To avoid substantial prejudice to a defence or to lift ‘a substantial and unreasonable restriction on reporting.’

Question 30

When does anonymity for sexual offences, FGM, trafficking or forced marriage not apply?

Answer 30

To reports of a court case when the charge(s) in those proceedings was/were originally and remain(s) ‘other than’ the offence alleged by that victim/alleged victim, e.g. such anonymity does not apply to a report of court proceedings in which a person who claimed to have been a victim of a sexual offence has been prosecuted in those proceedings - in respect of that claim - for perjury, wasting police time, or perverting the course of justice.

Question 31

What does the Editors’ Code of Practice state about children in sex cases?

Answer 31

Clause 7 states:

The press must not, even if legally free to do so, identify children under 16 who are victims or witnesses in cases involving sex offences.
In any press report of a case involving a sexual offence against a child -

i) The child must not be identified.
ii) The adult may be identified.
iii) The word “incest” must not be used where a child victim might be identified.
iv) Care must be taken that nothing in the report implies the relationship between the accused and the child.

Question 32

What does breach of the 1992 Act’s anonymity for victims/alleged victims of sexual offences also breach?

Answer 32

Clauses 7 and 11 of the Editors’ Code of Practice and clause 1.8 of the Ofcom Broadcasting Code.

Question 33

What is the punishment for breaching the Sexual Offences (Amendment) Act 1992?

Answer 33

Fine unlimited by statute.

Question 34

What notably applies to Clause 7 of the Editors’ Code? Explain.

Answer 34

Public interest exceptions, but it would be in exceptional cases that the code’s public interests exceptions would be able to justifiably override the clause’s anonymity provisions.

Question 35

What would breach of the Editors’ Code Clause 7 when anonymity law is in place also breach?

Answer 35

Clause 2 as regards intrusion into privacy.

Question 36

What does the Ofcom Broadcasting Code state as regards coverage of sexual offences involving under-18s?

Answer 36

1.8: Where statutory or other legal restrictions apply preventing personal identification, broadcasters should also be particularly careful not to provide clues which may lead to the identification of those who are not yet adult (the defining age may differ in different parts of the UK) and who are, or might be, involved as a victim, witness, defendant or other perpetrator in the case of sexual offences featured in criminal, civil or family court proceedings:

• by reporting limited information which may be pieced together with other information available elsewhere, for example in newspaper reports (the ‘jigsaw effect’);
• inadvertently, for example by describing an offence as “incest”; or
• in any other indirect way.

(Note: Broadcasters should be aware that there may be statutory reporting restrictions that apply even if a court has not specifically made an order to that effect.)

Question 37

What does the Editors’ Code of Practice say about victims of sexual assault?

Answer 37

Clause 11 states:

The press must not identify or publish material likely to lead to the identification of a victim of sexual assault unless there is adequate justification and they are legally free to do so. Journalists are entitled to make enquiries but must take care and exercise discretion to avoid the unjustified disclosure of the identity of a victim of sexual assault.

Question 38

What would breach of the Editors’ Code Clause 11 when anonymity law is in place also breach?

Answer 38

Clause 2 as regards intrusion into privacy.

Question 39

What does the Female Genital Mutilation Act 2003 ban?

Answer 39

Automatically bans any publication from identifying a person as being a victim/alleged victim of an offence of female genital mutilation, or of the offence of failing to protect a girl from the risk of FGM.

Question 40

What is the scope of the Female Genital Mutilation Act 2003?

Answer 40

Same as the Sexual Offences (Amendment) Act 1992. No detail which identifies someone as being a victim/alleged victim of FGM should be published during his or her lifetime, particularly:

• his/her name
• his/her address
• the identity of any school or other educational establishment he/she attends
• the identity of any place of work
• any still or moving picture of him/her

Question 41

What does Schedule 6A of the Anti-Social Behaviour, Crime and Policing Act 2014 ban?

Answer 41

Bans identification of victims or alleged victims of forced marriage.

Question 42

What is the scope of Schedule 6A of the Anti-Social Behaviour, Crime and Policing Act 2014?

Answer 42

Same as the Sexual Offences (Amendment) Act 1992. No detail which identifies someone as being a victim/alleged victim of forced marriage should be published during his or her lifetime, particularly:

• his/her name
• his/her address
• the identity of any school or other educational establishment he/she attends
• the identity of any place of work
• any still or moving picture of him/her

Question 43

Which Act automatically bans any publication from identifying a person as being a victim/alleged victim of a human trafficking for exploitation?

Answer 43

Section 1 of the Sexual Offences (Amendment) Act 1992, under the Modern Slavery Act 2015.

Question 44

What is the scope of Section 1 of the Sexual Offences (Amendment) Act 1992 under the Modern Slavery Act 2015?

Answer 44

Same as the Sexual Offences (Amendment) Act 1992. No detail which identifies someone as being a victim/alleged victim of human trafficking should be published during his or her lifetime, particularly:

• his/her name
• his/her address
• the identity of any school or other educational establishment he/she attends
• the identity of any place of work
• any still or moving picture of him/her

Question 45

Which trafficking offences does lifetime anonymity usually apply to?

Answer 45

Trafficking a person for exploitation in slavery or forced labour, which could include work in domestic servitude, or for sexual exploitation, including prostitution.

Question 46

How can a court permanently ban publication of a name or matter in media reports of cases involving blackmail, national security, or commercial secrets?

Answer 46

Section 11 of the Contempt of Court Act 1981.

Question 47

How can a criminal court give an adult witness lifetime anonymity and what conditions must be satisfied for this to happen?

Answer 47

Under Section 46 of the Youth Justice and Criminal Evidence Act 1999, a criminal court can give an adult witness lifetime anonymity if it is satisfied that:

• the quality of the person’s evidence, or level of cooperation in preparations for the case, is likely to be diminished by fear or distress in connection with being identified by members of the public as a witness in that case, and
• granting anonymity is likely to improve the quality of the witness’s evidence or the level of his/her cooperation.

Question 48

What is the scope of a section 46 order under the Youth Justice and Criminal Evidence Act 1999?

Answer 48

No matter relating to the witness should, during his/her lifetime, be included in any publication if it is likely to lead members of the public to identify him/her as a witness in the proceedings, particularly:

• his/her name
• his/her address
• the identity of any school or other educational establishment he/she attends
• the identity of any place of work
• any still or moving picture of him/her

Question 49

How may a court (in particular what court?) order that a person must not be identified in any publication as regards of some aspect(s) of their life or that no such report should be published because of the person’s rights to respect for private and family life? Name the convention and the article.

Answer 49

By using an injunction (particularly the High Court). Article 8 of the European Convention on Human Rights.

Question 50

Name an instance where a court has made a permanent injunction against the publication of anything identifying notorious criminals and name the articles on which such an injunction may be based.

Answer 50

Instance involving the identity of Jon Venables and Robert Thompson. May be based on Article 2 of the European Convention on Human Rights (right to life) and/or Article 3 (right which protects against degrading treatment or torture).

Question 51

What is ‘jigsaw identification’?

Answer 51

‘Jigsaw identification’ describes the effect when someone to whom the law has given anonymity is nevertheless identifiable to the public because of a combination or accumulation of detail published.

Question 52

When is there particular danger of jigsaw identification and how can this be avoided?

Answer 52

When anonymity provision applies automatically in law or by court order there is particular danger of jigsaw identification if journalists serving different media organisations, or blogging in their own right, fail to liaise - when covering such a story - to avoid jigsaw identification; and so they may need to agree prior to publication the specifics of non-identifying detail to be published.

Question 53

When is there a specific ethical obligation to avoid jigsaw identification? Name the relevant code(s).

Answer 53

In coverage of sexual offences involving children, as expressed in the Editors’ Code of Practice (under 16s) or in the Ofcom Broadcasting Code (under 18s).

Question 54

What could jigsaw identification also breach?

Answer 54

Clause 11 of the Editors’ Code, which deals with victims of sexual assault.